Getting Mauled In Food Lion's Den   

A jury's ruling against ABC's "PrimeTime Live" could stifle investigative reporting.

When ABC's "PrimeTime Live" went undercover into Food Lion's den, it got more than it bargained for.

Following up on tips about unsanitary practices at the multinational supermarket chain, the network sent reporters to obtain jobs as food handlers to see what was going on behind the scenes. A "PrimeTime Live" story in November 1992 accused Food Lion of selling outdated and contaminated food and included hidden camera footage to buttress its case.

Food Lion filed suit in federal court in Greensboro, North Carolina. But instead of claiming libel, the company charged that ABC staffers trespassed when they used hidden cameras on the premises. They also claimed that the staffers committed fraud by lying about their previous work experience and continuing to work for the network while they were supposedly Food Lion employees.

The grocery chain asked the jury to decide whether using what it characterized as deceptive newsgathering techniques should be punished (see "The Lion's Share," page 18).

Plaintiffs unhappy with news coverage increasingly are challenging newsgathering techniques rather than the substance of the story (see "Fighting Back," January/February 1996). Food Lion's masterful effort to shift the focus from content to conduct worked. Not only did the jury rule in its favor, but some news organizations rushed to condemn the network as well. ABC, they said, broke the law.

It is true that journalists are subject to laws that apply to everyone else. But the U.S. Supreme Court has recognized that when reporting is involved, the interests a law is designed to protect must be balanced against the First Amendment interest in the free flow of information.

That is why, in Hustler Magazine vs. Falwell , the high court ruled that the Rev. Jerry Falwell could not be compensated for emotional distress stemming from a parody unless he could also demonstrate falsity and actual malice, constitutionally mandated elements for establishing that a public figure has been defamed. Even though the "general law" regarding emotional distress did not require it, the Supreme Court found that the standard was necessary in cases involving the news media to strike a balance between protecting public figures and protecting robust debate about them.

Consider this principle in the context of trespass, a civil wrong based on the assumption that a property owner has the right to control who enters his or her territory. Technically, anyone who goes onto private property without the owner's permission has trespassed. Consent can be implied in certain circumstances, such as when a reporter follows an official into a crime or accident scene.

In this case, ABC's reporters gained access to Food Lion's premises because they were hired to work there.

Food Lion argued that its consent was invalid because it was obtained fraudulently. Fraud occurs when facts are intentionally misrepresented to induce someone to act in a way harmful to his interests.

What harm did Food Lion suffer as a result of the "deception"? The company spent about $2,500 training and paying the reporters to do work they weren't qualified to do. The jury awarded the company about half of that, along with an additional two dollars as nominal compensation for the damage caused by trespassing.

If that's all there was to the case, it wouldn't be very significant. But no company the size of Food Lion would waste so much money and so many resources simply to recover a paltry $2,500. It wanted to discourage the kind of aggressive reporting ABC undertook by attacking the most legally vulnerable aspect of the case: not the story itself, but the way ABC got it.

The jury ruled for Food Lion, even though the use of hidden cameras is not a crime in North Carolina, and even though the story involved allegations of business practices that posed a threat to health and safety. It then awarded the grocery chain $5.5 million in punitive damages – much less than Food Lion had sought, but a significant sum even to ABC and certainly intimidating to less well-heeled news organizations.

The danger of the Food Lion verdict is that its rigid application of tort law to newsgathering will invite similar suits by powerful corporate interests determined to deflect legitimate investigations into their operations and practices. Even worse, the ruling is so vague that it will be almost impossible to determine whether a particular investigative technique crosses the line.

Reporters frequently go where they are not welcome. They are often less than forthcoming about why they are working on a story. Whether such conduct is ethical is a fair subject for debate. But a court is not an ethics tribunal. If the laws of trespass and fraud can be used against journalists without the leavening influence of the First Amendment, all investigative reporting is at risk. l